Kerala High Court
Robert Sebastian vs Linet Suba Also Known As Linet Suba ... on 2 July, 1992
Equivalent citations: AIR1992KER412, II(1992)DMC345, AIR 1992 KERALA 412, (1992) 2 KER LT 107, ILR(KER) 1992 (3) KER 20, (1992) 2 DMC 345, (1992) 2 KER LJ 69, (1993) MARRILJ 121, (1993) MATLR 11, (1993) 1 CIVLJ 159
Author: M. Jagannadha Rao
Bench: M. Jagannadha Rao
JUDGMENT Sreedharan, J.
1. This is a reference made by the District Court, Kollam, under Section 17 of the Indian Divorce Act, hereinafter referred to as "the Act". Court below, by order dated 4-7-1991, dissolved the marriage between the petitioner/husband and first respondent/wife. It also directed second respondent, the adulterer, to pay damages to the tune of Rs. 25,000/- to the petitioner.
2. Husband moved a petition under Sections 10 and 34 of the Act, alleging as follows:-- Marriage of the petitioner with the first respondent was solemnised on 9th July, 1981 at the Immaculate Conception Church, Pullichira. At the time of the marriage, petitioner was employed in Abudhabi. After 21 days of cohabitation, he returned to Abudhabi on 28th July, 1981. He returned on leave on 5th October, 1982 and stayed with the first respondent till 16th November, 1983. A male child was born through the wedlock on 25th July, 1983. Later he stayed with the first respondent from 28th March, 1984 to 2nd May, 1984. Thereafter, he could return to India only in September, 1989. On 29-3-1990, petitioner's cousin brother informed him over the phone that first respondent and the child are missing. Father of the first respondent sent letters to the petitioner informing that first respondent and the child are missing. Petitioner's father lodged a complaint with the police on 23-3-1990 alleging that first respondent and the child are missing. Later, petitioner's mother filed a complaint before the Chief Judicial Magistrate, Kollam on 18-4-1990 under Section 97 of the Code of Criminal Procedure and Section 366 of the Penal Code, after getting information that first respondent eloped with the second respondent and the first respondent and the child are detained in the Quarters of the second respondent in Viyyoor Central Jail, Thrissur. Magistrate issued a search warrant. Pursuant to that, Sub-Inspector of Police, Kottiyam Police Station searched the Quarters of the second respondent and arrested respondents 1 and 2 and the child from the Quarters and produced them before the Magistrate. When the Magistrate ascertained the wishes of the first respondent, she stated that she prefers to live with her lover, the second respondent. Custody of the child was given to first respondent's father. First respondent, being a major, was let off free. She left the place in the company of the second respondent.
3. On getting information about the elopement of the first respondent along with the second respondent, petitioner rushed to India and reached Kollam on 8th May, 1990. He moved application under Sections 10 and 34 of the Act before the District Court, Kollam on 4-6-1990.
4. Respondents appeared before the District Court. First respondent filed objections. Second respondent did not contest the case.
Petitioner got himself examined as PW 1 and proved Exhibits A-1 to A-13. On an appreciation of the entire evidence in the case, District Court came to the conclusion that there are more than sufficient materials to prove that first respondent was guilty of adultery with the second respondent, that there is no collusion between the petitioner and the first respondent, and that the prayer for divorce has to be allowed. On the claim for damages put forward by the petitioner, the learned Judge held that the interest of justice will be met only if the painful petitioner is awarded damages to the tune of Rs. 25,000/- by the second respondent besides his liability to pay costs to the petitioner.
5. Before this Court, the second respondent entered appearance and raised two contentions. The first one is that sufficient opportunity was not afforded to him by the trial Court to put forward his contentions, and the second one is that the award of damages to the petitioner as against him is not based on any material and that it has to be vacated. We shall examine these contentions in detail.
6. Notice of the petition filed before the District Court, Kollam was served on the second respondent and he entered appearance on 20-7-1990. For his objections and the return of notice of the first respondent, the case was adjourned to 6-8-1990, 24-8-1990, 24-9-1990, 12-10-1990, 9-11-1990, 30-11-1990. 3-1-1991, 2-2-1991, 20-3-1991 and 4-6-1991. On 6-6-1991 when the case was called, second respondent again prayed for time for filing objections. The Court adjourned the case to 24-6-1991 stating that no further time will be granted. On 24-6-1991, no objection was filed by the second respondent and so he was set ex parte. At the request of the first respondent, the case was then adjourned to 26-6-1991. On that day, petitioner was examined as PW 1 and Exhibits A-1 to A-13 marked. From the above postings, we are of the view that sufficient opportunity was afforded to the second respondent for filing his objections. He did not avail of that opportunity. He did not take part in the trial of the case. So, the contention now raised by the second respondent that no opportunity was afforded to him to put forward his defence is untenable and we overrule the same.
7. First respondent was staying in the building belonging to her father during the absence of the petitioner from India. On 29-3-1990, petitioner's cousin brother informed him that first respondent and the child are missing from her house. First respondent's father also informed the petitioner of this fact by Exhibit A-l letter dated 24-3-1990. Police was informed about this fact. But, they did not take any action. Petitioner's mother then approached the Chief Judicial Magistrate's Court, Kollam by filing Exhibit A-3 complaint. On the basis of that complaint, Magistrate issued search warrant. Consequently, police searched the Quarters of the second respondent at the Viyyur Central prison and arrested respondents 1 and 2 and brought them before Court along with the son of the first respondent. First respondent's father was entrusted with the child. First respondent expressed her intention to live with the second respondent. First respondent being a major, was let off by the Magistrate. She went with the second respondent. According to the petitioner, respondents 1 and 2 entered into a contract of marriage and it was registered with the Sub-Registrar's Office, Varkala on 6th March, 1990. In the objection filed before the Court below, first respondent admitted the execution of that document, but stated that they had no sexual contact in pursuance of the said document. She also contended that the marriage document was subsequently cancelled. In the counter-affidavit, she admitted that the second respondent belongs to the Ezhava community and that he is employed as Warder in the Central Prison at Viyyoor. From the above evidence, the learned District Judge came to the conclusion that first respondent has committed adultery and that she was living in adultery. We do not find any sufficient reason to interfere with the said finding. We also hold that there was no collusion between the petitioner and first respondent. It, therefore, follows that the decree granted by the District Court dissolving the marriage between the petitioner and the first respondent has only to be confirmed and we do so.
8. The question that remains to be considered is whether the second respondent is entitled to challenge the order directing him to pay damages to the petitioner to the tune of Rs. 25,000/- in this proceedings. As stated earlier, the matter that has come before us is the confirmation of the decree for dissolution of the marriage passed by the District Court. The order directing the second respondent to pay damages to the petitioner is not one required to be confirmed by this Court. So, that issue is not before this Court in a reference under Section 17 of the Act.
9. As per Section 34 of the Act, any husband may, either in a petition for dissolution of the marriage, or in a separate petition claim damages from any person on the ground of his having committed adultery with the wife. In the instant case, the husband while moving a petition under Section 10 of the Act for dissolution of the marriage, with the adulterer on the array of parties, claimed damages to the tune of Rupees Two Lakhs on account of his having committed adultery with the wife. That claim was put forward invoking the provisions contained in Section 34 of the Act. While granting the decree of divorce, the Court saddled the second respondent with liability to pay damages to the tune of Rs. 25,000/-. As per Section 55 of the Act, all decrees and orders made by the Court in any suit or proceedings under the Act may be appealed from, under the laws, rules and orders for the time being in force. That Section has a proviso, in the following terms:--
"Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage; nor from the order of the High Court confirming or refusing to confirm such decree."
This proviso relates only to the decree for dissolution of the marriage or of nullity of marriage. Other orders passed by the District Court falling outside the purview of the proviso are appealable. Second respondent, if was aggrieved by the order directing him to pay damages, should have challenged the same by preferring an appeal to this Court. He has not cared to challenge that part of the order by preferring an appeal.
10. The question whether the order directing the co-respondent to pay damages to the husband is open to challenge in a reference under Section 17 of the Act came up for consideration before a Full Bench of the Bombay High Court in Kyte v. Kyte and Cooke, (1869) 20 ILR Bom 362. In that case, the District Court dissolved the marriage at the instance of the husband on the ground of adultery and directed the co-respondent to pay a sum of Rs. 500/- as damages to the petitioner. When the matter came up for confirmation under Section 17 of the Act, the Full Bench observed :--
"That the intention of the Act of 1869 was to give the Court the fullest power to deal with the case according as justice might require, including the award of damages by the Court below."
After having made that observation, the decree granting divorce as also the decree as against the co-respondent were confirmed. The co-respondent was also directed to pay cost to the petitioner.
11. In Peyton v. Peyton, AIR 1937 Lah 417, a Full Bench of the Lahore High Court, relying on the Bombay decision referred to earlier, took the view that a co-respondent can challenge the order awarding damages in the proceedings under Section 17 of the Act. Even then Their Lordships did not interfere with the order awarding damages while confirming the decree dissolving the marriage.
12. In Linton v. Guderian, AIR 1929 Cal 599 Rankin C. J., had to consider the nature of the order directing the co-respondent to pay damages to the husband. On the facts of the case, the Court came to the conclusion that the District Court had no jurisdiction to grant the decree of divorce. Consequently, it was contended that the prayer for damages must be declined. The learned Judge observed at page 603:--
"There can be no doubt that the causes of action, to use the common law expression, against the co-respondent for damages and against the wife for divorce are different and distinct, although, upon a true construction of the Divorce Act, the same defences are open to these claims. But I am not of opinion, in view of the plain terms of Section 34, which says that the husband may claim damages in a petition limited to such object only, that it can be right in a case of this character to say that, because the Court has no jurisdiction to grant a decree for divorce, it cannot treat this petition as a petition for damages alone and award damages upon it. It is quite clear, however, that the damages suffered by the petitioner will be different according as he is getting a decree for divorce or is not to get a decree for divorce."
The above decision proceeds on the basis that the causes of action against the co-respondent for damages is entirely different from that against the wife for divorce. The decree granting divorce as against the wife alone is coming up for confirmation under Section 17 of the Act. The order granting damages does not fall within the purview of a reference under Section 17. Therefore, the co-respondent cannot be allowed to dispute his liability for damages in a reference under Section 17 of the Act. This view is supported by the Full Bench decision of the Allahabad High Court in Barrett v. Barrett, AIR 1950 All 193. District Court granted the petitioner a decree of dissolution of the marriage, subject to confirmation by the High Court and ordered the co-respondent to pay Rs. 5,000/- as damages along with all costs of the suit. In the proceedings under Section 17 of the Act, corespondent challenged the order awarding damages to the husband. Full Bench rejected the reference for confirmation on the ground that the District Court had no jurisdiction to entertain the petition. On the question whether the decree awarding damages to the husband is to be interfered with when the decree for dissolution of the marriage was set aside, after referring to the decision in Kyte v. Kyte, (1869) 20 1LR Bom 262, the Full Bench opined that the only matter that came up before the Court was the confirmation of the decree dissolving the marriage and not the order awarding damages. The Full Bench observed:--
"Under Section 34, Divorce Act, it is permissible for the husband either in a petition for dissolution of a marriage or in petition to the District Court or High Court limited to such object only, to claim damages from any person on the ground of his having committed adultery with the wife of such petitioner. The Divorce Act does not require that the order regarding damages should be subject to confirmation by the High Court if passed by the District Judge. If anybody is aggrieved against the order, the remedy by way of appeal has been provided under Section 55."
In this view, Full Bench declined to look into the validity or propriety of the decree for damages in the confirmation proceedings without any specific appeal by the aggrieved party against such a decree. We are in respectful agreement with the view taken by the Full Bench of the Allahabad High Court. The claim for damages is an independent cause of action and can be enforced without praying for dissolution as is clear from the wording of Section 34.
13. In the instant case, the District Court granted a decree to the husband dissolving the marriage with the first respondent and directed the second respondent, the adulterer, to pay Rs. 25,000/- by way of damages to the petitioner. In the, reference under Section 17, we have confirmed the decree for dissolution of the marriage. Second respondent has not independently challenged the order awarding damages against him by filing an appeal against that part of the order. In that view, this Court cannot interfere with that part of the order.
14. A marriage udambadi was executed between the first respondent and the second respondent in the Sub-Registrar's Office, Varkala. The first respondent has alleged in her objection that the said agreement has been cancelled. Learned counsel representing the second respondent stated before Court that his client is not having any contact whatsoever with the first respondent at present. We enquired with the counsel representing the petitioner/husband as to whether he is having any objection in directing the amount of damages awarded to the husband to be given to the first respondent/wife. Learned counsel fairly and rightly submitted that petitioner has no objection in allowing first respondent to get the amount from the second respondent. Taking note of this fact and the entire facts and circumstances of this case, we order that Rs. 25,000/- directed to be paid by the second respondent as damages will be paid by him to the first respondent/wife.
15. We confirm the decree of divorce passed by the Court below and the reference is disposed of accordingly.